On the limits of cultural accommodation: KwaZulu-Natal MEC for Education v Pillay

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Citation: 2015 Acta Juridica 456
• Pages: 456-494
• Author: Okyerebea Ampofo-Anti

On the limits of cultural accommodation:

KwaZulu-Natal MEC for

Education v Pillay

OKYEREBEA AMPOFO-ANTI* AND MICHAEL BISHOP

†

In KwaZulu-Natal MEC for Education v Pillay, Chief Justice Langa held that it

constituted unfair discrimination for a public school to prevent a learner from

wearing a nose stud to school, because wearing the stud was a voluntary part of

the learner’s religion and, more importantly, her culture. In this contribution

we consider the limits of this type of cultural accommodation after Pillay by

focusing on two questions: What types of beliefs and practices are ‘‘cultural’’?

And how should courts determine the burdens other must bear to accommo-

date cultural practices? First, we offer preliminary answers to three central

questions that Pillay left unanswered: What is a culture? Who qualif‌ies as a

member of a culture? How do we determine which practices are part of a

culture? Second, we discuss the role and meaning of ‘‘reasonable accommoda-

tion’’and argue that Pillay mistakenly framed it as a balancing test between the

interests of the learner and the school. In doing so, it obscured other important

factors that should be considered.

I INTRODUCTION

To what extent do cultural practices have to be accommodated in public

institutions? This was the question that was placed before the Constitu-

tional Court in MEC for Education: Kwazulu Natal v Pillay (Pillay)

1

which

concerned the right of a learner to wear a nose stud to school. Langa CJ

held for the court that the school was obliged to permit the learner to

wear her nose stud.

In this contribution, we explore the likely limits of the type of cultural

accommodation presaged in Pillay. Will learners at schools who claim to

be part of Punk culture demand their right to tattoos, f‌lesh tunnels and

Mohawks? Can an employee who is fanatical about Kaizer Chiefs claim

that he is a member of Kaizer Chiefs culture and that he is therefore

entitled to time off from work to attend the Chief v Pirates derby, a major

‘cultural’ festival? Can a recent German immigrant to Cape Town claim

exemption from by-laws to slaughter a cow in his backyard because he

* Partner, Webber Wentzel; Attorney of the High Court of South Africa; LLB LLM

(Pretoria).

†

Counsel, Constitutional Litigation Unit, Legal Resources Centre; Honorary Research

Associate, University of Cape Town; Member of the Cape Bar; BALLB LLM (Pretoria) LLM

(Columbia).

1

2008 (1) SA474 (CC).

456

2015 Acta Juridica 456

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considers himself part of Zulu culture? And can an employer be required

to accommodate a person’s cultural practice of coming to work dressed in

a loincloth?

In short, does the approach to cultural accommodation in Pillay entitle

a person to make up a culture, claim membership of it, assert that a

practice that she ‘sincerely believes’ in is part of that culture, and then

demand that she be accommodated?

This is not merely another ‘parade of horribles’.

2

The justif‌ications for

protection of cultural practices that Langa CJ proffers in Pillay could be

read to protect an individual right to identity that entitles a ‘reasonable

accommodation’ for any practice a person believes is important to her

identity. One commentator has explained his fears as follows:

One wonders how and whether a belief sheltered by, say, iconoclastic or

eccentric expressions of individual will, but nonetheless a ‘belief’, would be

analysed? What weight is placed on the balancing scales where uniforms are

weighed not against religious or cultural beliefs and membership (which the

cases show can marshal signif‌icant social arguments for their respect) but

against what may seem merely idiosyncratic whims or expressions of pique,

adolescent rebellion or ego? Say, a clerk at the Constitutional Court who

sports a Mohawk and goes barefoot with or without wearing a kilt. If the test

here is largely subjective (as it would appear to be with both religion and now

culture after Pillay), why should we treat the non-religious, non-cultural

individual claim for respect differently than claims that are at bottom commu-

nal, but which the Court treats as individual forms of expressive conduct?

3

This contribution avoids the larger moral question posed by this hypo-

thetical: Should the law accommodate non-cultural, non-religious claims

for protection of practices that are important to a person’s identity?

4

Instead, it argues that Pillay did not establish an open season for

individual claims of ‘identity accommodation’. Properly understood,

Pillay creates several safety valves that will allow courts in the future to

prevent absurd or unrealistic claims for cultural accommodation. It

2

Pillay (n 1) para 94, quoting Employment Division, Department of Human Resources of Oregon,

et al v Smith, et al 494 US 872 (1990) 902 (O’Connor J, dissenting).

3

I Benson ‘The case for religious inclusivism and the judicial recognition of religious

associational rights:A response to Lenta’ (2008) 1 Constitutional Court Review 295 at 307–8.

4

One of the authors has addressed that question elsewhere and argued that we should

protect such claims of identity (although we should not protect ‘merely idiosyncratic whims or

expressions of pique, adolescent rebellion or ego’). See M Bishop A Story Like the Wind:Identity,

Storytelling and Human Rights Law (unpublished LLM thesis, University of Pretoria, 2008). For a

similar argument, with a very different conclusion, see B Leiter Why Tolerate Religion? (2014).

Leiter – whose focus is on whether religion deserves special protection – concludes that it does

not. He reasons that all claims of conscience deserve equal protection but that for practical

reasons about inequality in proving non-religious claims, and the possibility that granting

exemptions will shift burdens to those who have no claim of exemption, no claims of

conscience (religious or non-religious) should be permitted.

457

ON THE LIMITS OF CULTURAL ACCOMMODATION

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establishes a principled basis for the protection of culture that is not

limited to traditional understandings of what constitutes a culture, and

allows any group that believes it can justify exemption on those principled

grounds an opportunity to seek to be accommodated.

While Pillay establishes this nuanced framework, it is neither complete

nor perfect. It leaves several important questions about the scope of claims

for cultural accommodation largely unanswered: What is a ‘culture’?

How do we determine cultural membership? Which beliefs or practices

are ‘cultural’? Langa CJ’s judgment also, perhaps unintentionally, estab-

lished a mechanism for the balancing of competing interests that leaves

out important public considerations, and reduces cultural claims entirely

to the subjective positions of the competing parties. We argue that the

rubric of ‘reasonable accommodation’ the court employed, while helpful,

can obscure rather than illuminate the issues at stake. Abetter understand-

ing of the role of reasonable accommodation will prevent cultural

accommodation from being abused while still allowing suff‌icient space

for not only tolerating cultural and religious diversity, but ‘celebrating’it.

5

The contribution is structured as follows. Part II summarises the facts

and f‌indings in Pillay with an emphasis on those issues we consider later in

the paper. Part III addresses the three questions concerning what types of

cultural practices should be protected after Pillay: What is a ‘culture’?

How do we know who are members of a culture? And how do we

determine which practices or beliefs are ‘cultural’? Lastly, in Part IV we

deal with the question of ‘reasonable accommodation’. We contend that

the phrase – which is central to Langa CJ’s analysis in Pillay – misstates the

appropriate test for fairness under the Promotion of Equality and Preven-

tion of Unfair Discrimination Act 4 of 2000 (the Equality Act). Reason-

able accommodation should be treated as an overarching substantive

principle, not a method of analysis.

II PILLAY

During the September holidays in 2004 Ms Pillay permitted her daughter

Sunali to pierce her nose and to insert a small gold nose stud. When Sunali

returned to Durban Girls’ High School (the school) after the holidays, Ms

Pillay was informed that Sunali was not permitted to wear the nose stud.

The school told her that its code of conduct (the Code) restricted

jewellery to one pair of plain earrings and a watch. It asked Ms Pillay to

motivate why Sunali should be exempted from the code of conduct.

Ms Pillay explained to the school that the nose stud held cultural and

religious signif‌icance to the family. The family was of South Indian origin

and according to their culture every woman in the family would have her

5

Pillay (n 1) para 65.

458 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA

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